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Custodial torture and its guidelines in Criminal Procedure

INTRODUCTION

“The Code of Criminal Procedure,1973” regulates procedures from the filing of a grievance to the final judgment. While dealing with procedures like arrest and placing the accused person into custody the Code on the one hand curbs the rights of an individual by putting him in custody while on other hand punishing the culprit. Therefore, its provision is such that it balances the interest of society as well as affects the culprit’s rights so that the investigation can be carried out properly.

WHAT IS CUSTODIAL TORTURE:

Torture is the infliction of pain to accomplish a purpose. After the production before the magistrate accused is then sent to police custody and is kept in the police station during that period the police officer to carry out an investigation will torture the accused person. The Criminal Procedure Code and subsequent case laws not allowed torture. Even in many judgments, the Hon’ble Supreme Court has reiterated that the torture of the accused is not allowed. The National Level Commission for Human Rights has mandated that within 24 hours of the death of the accused person in custody the information will be provided to the commission. In The Code of Criminal Procedure Sec.57 provides that the arrested person has to bring before the court within 24 hours and thereafter the accused will be sent to police custody but it will be in totality not more than 15 days whereas generally, the magistrate will grant the police custody for 3 to 4 days thereafter the accused will bring again before the court to ensure that he will be not tortured and the magistrate will thereafter remand him to any custody as the court deems fit.

PROVISIONS UNDER THE CRIMINAL PROCEDURE CODE,1973 TO ENSURE THE SAFETY OF ACCUSED

1.Sec.41B Procedure of arrest and duties of a police officer making an arrest-

“Every police officer while making an arrest shall –

(a) bear an accurate, visible, and clear identification of his name which will facilitate easy identification;

(b) prepare a memorandum of arrest which shall be-
(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and

(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.”

  1. Sec. 41 D Right of arrested person to meet an advocate of his choice during interrogation-

“When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation.”

  1. Sec.49 No unnecessary restraint-

“The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.”

  1. Sec.50 Person arrested to be informed of grounds of arrest and of right to bail-

“(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offense for which he is arrested or other grounds for such arrest. 

(2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offense, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.”

  1. Sec.50A Obligation of the person making arrest to inform about the arrest etc. to a nominated person-

“(1) Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person to give such information.

(2) The police officer shall inform the arrested person of his rights under subsection (1) as soon as he is brought to the police station.

(3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as may be prescribed on this behalf by the State Government.

(4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of subsection (2) and sub-section (3) have been complied with in respect of such arrested person.”

  1. Sec. 54 Examination of arrested person by a medical officer-

1- “When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offense or which will establish the commission by any other person of any offense against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for vexation or delay or for defeating the ends of justice.

2-Where an examination is made under Sub-Section (1), a copy of the report of such examination shall be furnished by the registered medical practitioner to the arrested person or the person nominated by the such arrested person.”

  1. Sec.55A Health and safety of arrested person-

“It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused.”

  1. Sec. 56 Person arrested to be taken before magistrate or officer-in-charge of the police station-

“A police officer arresting without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, lake or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.”

  1. Sec. 57 Person arrested not to be detained more than twenty-four hours-

“No police officer shall detain in custody a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.”

  1. Sec.58 Police to report apprehensions-

“Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-divisional Magistrate, the cases of all persons arrested without a warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise.”

CASE LAWS

The provisions for the safety of the accused person in custody were provided by the code but then also there are numerous cases where the rights of the person are infringed let’s analyze some of the case laws where the court reiterates the provisions: 

Sheela Barse vs State of Maharashtra -In this case, “The Supreme Court has cautioned the lower courts not to adopt a casual approach to custodial torture. In this case, a journalist sought permission to interview a prisoner in jail but when she started recording od statement the permission was withdrawn for which she had filed a writ in the apex court. The Supreme Court in this case observed the various provision relating to the rights of an individual under the constitution and about committees to observe the conditions of jail and finally order the journalist to again apply for permission to interview them.”

D.K Basu vs State of West Bengal The Supreme Court held in this case that third-degree torture is impermissible interrogation should be based on scientific principles and also provided that cases involving the detention of women state government should ensure the presence of women constables in the police department.

Khatri and Ors vs State of Bihar In this case, the police poured acid on the faces of the accused and blinded them without production before the magistrate. The accused were directed to produce before the magistrate within 24 hrs and the court ordered the state government to take action against irregularities of police officials. The accused were granted compensation.

ANALYSIS

The guidelines and provisions that were provided are not enough for preventing the torture of the accused in custody. According to the report published by National Campaign against Torture 2019, 1731 custodial deaths were reported which means on an average five custodial deaths are reported in a single day”. The National Human Rights Commission from time to time has published reports where it provided the guidelines but then also the custodial torture increasing from day to day. To stop this and maintain law and order there were online complaint mechanisms that can be used to file a complaint against custodial torture and apart from this there were also reliefs that are available to the aggrieved. There is provision of relief, According to Sec. 357(2) of the Criminal Procedure Code the court can award an unlimited amount of compensation at the time of awarding compensation and in case the accused has been kept in custody for more than 24 hrs immediately on production of accused file an application before a magistrate. Also, the police officer is liable under Sec.220 IPC for illegal detention.

CONCLUSION

The Criminal Procedure Code provided provisions so that the rights of the accused will not get infringed and the Supreme Court has also from time to time been given guidelines through case laws to prevent the torture of the accused. But then also there is a lack of support from the state government and due to corrupt practices of police officers, the torture is continued till the present. The only way to solve these problems is through the promotion of awareness and strict observation by the judicial magistrate during the production of the accused. The judicial magistrate must ensure that the accused should not get tortured and in case the accused is tortured then strict action against the police officer so that the police officer would not torture the accused and follow the procedure laid down in the Criminal Procedure Code.

Author(s) Name: Ayush Shukla (Pt. Ravishankar University Raipur (C.G))